EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Undocumented Workers

April 2, 2001

Dear:

This is in reference to your letter dated February 7, 2001, requesting guidance on employment protections afforded undocumented workers. You state that a company has been exploiting undocumented workers by categorizing them as independent contractors. These undocumented workers are taking part in a union organizing drive and you ask whether they will be protected from reprisal based upon their union activities and whether they can now be "documented."

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (ADEA), the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (ADA), and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et
seq. (EPA), which prohibit employment discrimination on the basis of race, color, religion, sex, national origin, age, and disability. The EEOC has held that undocumented workers are covered under the laws that the Commission enforces. See EEOC Enforcement Guidance, Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, October 22, 1999. However, employer conduct based upon an employee's participation in union activities is not within the EEOC's
jurisdiction.

Employer conduct based upon undocumented workers taking part in union activities and reprisal based upon union activities should be addressed by the National Labor Relations Board. Your letter correctly states that the U.S. Supreme Court has held that undocumented workers are covered by the National Labor Relations Act. Sure-Tan, Inc., v. National Labor Relations Board, 467 U.S. 883, 894 (1984). The NLRB Regional Office for your area is:

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-12(b).